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in no case practice his system in this state ; | HOMESTEAD_FAILURE OF DEBTOR TO OCfor, however well qualified he may be, he
CUPY LAND UNTIL AFTER EXECUTION WAS
LEVIED.--It is the general rule that the homecannot be examined as a physician, and he
stead right is never forfeited when there has could not, without abandoning his practice
been an occupancy, and then a temporary reas an osteopath, obtain a diploma from a moval, with the intention to return and make medical college. If the statute applies to the premises a home; but where there has never bim, it also applies to trained nurses, and all
been an actual residence and use of the property
as a home, a mere intention to so occupy it others of that class, who for compensation
some future time will not be sufficient to administer to the wants of the sick. The re
· protect the homestead. Solary v. Hewlett, sult of such a construction of the statute
18 Fla. 756. An interesting phase of this would be to compel every one, whether will. question recently arose in the case of Marshall ing or unwilling, to employ a registered pby.
V. Mahorney, 63 S. W. Rep. 471, where sician to care for him when he is sick, or to
the court of appeals of Kentucky held that
land acquired by purchase could not be held extrust himself entirely to gratuitous services,
empt as a homestead, where it was not occupied however much he might prefer skillful nurs
as such until after the creditor's execution was ing to medical treatment. It is doubtful if levied thereon, though it was so occupied at the the legislature has the right under the con time it was sold under the levy. The court in stitution thus to restrict the free choice of
this case says: “We are aware that in a number
of cases tbis court has held that, where the title the citizen in a matter concerning only bim.
to the homestead was derived by descent, the self, and not the people at large.”
heir was entitled to a reasonable time after the
death of the ancestor to claim homestead, and NOTES OF IMPORTANT DECISIONS.
that until such time had elapsed it could not be
levied on and sold, even if the debt existed at the MINES AND MINING-JUDGMENT LIENS-UN
time it was inherited. See Jewell v. Clark's PATENTED CLAIMS.-The effect of a judgment
Exr., 78 Ky. 398; Dwelly v. Galbraith, 5 Ky. Law lien upon an unpatented mining claim came up
Rep. 209, and Miller v. Bennett (Ky.), 128. W. Rep. recently in the case of Butte Hardware Co. v.
194. The opinions are predicated upon the idea Frank, 65 Pac. Rep. 1, where the Supreme Court
that the statute does not deny exemption if the of Montana held that a judgment lien on an un
title be derived by descent, and not by purchase. patented mining claim is not lost by the transfer
But this doctrine has not been extended to cases of the claim by the judgment debtor, on the
where the title to tbe homestead was acquired ground that such transfer is an abandonment
by purchase, and the construction by this court thereof, since the transfer of an unpatented claim seems to be generally supported by those of does not amount to an abandonment. The court
| other states." Authorities sustaiping the posisaid: “The point is raised by respondents that a
tion of the court are as follows: Austin v. Stanjudgment, if a lien, would not be such after sale
ley, 46 N. H. 51; Jackson v. Bowles, 67 Mo. 609; of the mining claim,-he giving up possession to
Kelly v. Dill, 23 Minn. 435; Ingels v. Ingels, 50 the vendee,-for the reason that such sale would
would | Kan. 755, 32 Pac. Rep.387; Tiller v. Bass, 57 Ark. be an abandonment, and all his rights would be 179, 21 S. W. Rep. 34; Freeman v. Stewart, 5 gone, and the lien with them. In support of this
Biss. 19, Fed. Cas. No. 5088. It may be stated, position counsel cite Murley v. Ennis, 2 Colo. therefore, as the general rule, that in cases of levy 300, which declares that title by location may be
under execution, the bomestead exemption must lost by abandonment, and that if, without writ.
exist or be claimed at the time the writing came ing, he yield up the possession to another, the
| into the officer's hands. The defendant, moving right of the first occupant is gone by abandon
into the property thereafter, cannot hold it exment, and by virtue of his occupancy a new right
| empt as a homestead. has arisen in him who succeeds.' It is to be noted that the transfer is said to be abandonment RECEIVERS-RAILROADS—LIABLE AS COMif made without writing. The alleged transfer MON CARRIER.-Whether receivers in control of from Ritchie to Frank was in writing; hence the a railroad are liable as common carriers bas al. authority does not fit the averment of the com ways been an interesting question. It is well plaint. Section 2332, Rev. St. U. S., clearly con settled, however, that in his official capacity, at templates the buying and selling of mining least, he is liable to the same extent as a common claims, as it provides that, upon application for carrier. He is liable for injuries to passengers. patent, evidence may be offered to show the pos Dillingham v. Anthony, 73 Tex. 47; Brown v. session of and work done by the applicant's | Railroad, 96 III. 297 ; Newell v. Smith, 49 Vt. grantors. It would be absurd to permit sales | 255; Bartlett v. Keim, 50 N. J. Law, 250. He is for the benefit of the vendees, and then declare liable for goods lost or damaged in transporta. such sales proof of abandonment of all rights of tion. Nichols v. Smith 115 Mass. 332; Melendy the grantor."
| v. Barbour, 78 Va. 544. He is liable for injuries to employees from defective appliances and for I "A legislature which has no power to anthorthe negligence of other servants. Meara v. Hol. ize the levy of a tax or the creation of a brook, 20 Ohio St. 137; Sloan v. Railroad, 62 public debt for a private purpose, has no power Iowa, 728; Kain v. Smith, 80 N. Y. 458. But in to draw that authority to itself, or to create recent case of Powell V. Sherwood, 63 S. it by its mere declaration that a private purpose W. Rep. 485, the Supreme Court of Missouri is a public one. A legislature cannot make a pri. ran up against the question in its relation to vate purpose a public one by its mere fiat, and laws relating to fellow-servants, and held that the determination of the question in any case Laws of 1897, p. 96, defining the liabilities of rail whether or not a given object is public or private road corporations in relation to damages sus is a judicial, and is not a legislative function. Altained by their employees, and stating who are len v. Inbabitants of Jay, 60 Me. 124, 11 Am. Rep. fellow-servants, applies to receivers of railroad Rep. 185; Tyler v. Beacher, 44 Vt. 648, 651, 8 Am. corporations, as well as to the corporations 398; In re Eureka Basin Warehouse & Mfg. Co., themselves. There is some conflict of authority 96 N. Y. 42, 47, 48. If the bonds and coupons upon on this point, some cases affirming the position which this action is founded are ever paid, the of the Missouri court. McNulta v. Lochridge, 141 money to discharge them must be raised by the U.S. 327, 12 Sup. Ct. Rep. 11; Sloan v. Railroad, levying of taxes upon private property situated in 62 Iowa, 728; Pierce v. Van Dusen, 78 Fed. Rep. the township of Mission. Their validity, there693. Other cases take a contrary view: Hen fore, must depend upon the answer to the quesderson v. Walker, 35 Ga. 481; Campbell v. Cook, tion whether they were issued for, and their 86 Tex. 630, 26 S. W. Rep. 486; United States v. proceeds were applied to a public or a private Harris (1900), 20 Sup. Ct. Rep. 609; Thurman purpose. They were issued to raise money to v. Railroad, 56 Ga. 376. In Henderson v. Wal pay a subscription made by the township to the ker, supra, the court construed a statute com stock of a private corporation organized to erect mencing Railroad companies sball be liable to and operate mills to make sugar and syrup from such employees as to passengers for injuries,". sorghum cane, and their proceeds were applied etc. Suit was brought under this statute against to that purpose. The question, then, is whether the receivers of a railroad to recover damages or not the construction and maintenance of facfor injury to a servant caused by the negligence tories owned by private corporations to manuof a fellow-servant. It was held that the statute facture sugar and syrup from sorghum cane is a referred only to servants of a railroad company, public or a private purpose. The true answer to and would not be construed as extending to sery the question seems to be plain and certain. ants of the receivers of a railroad company, and Speaking generally, a public purpose is a governtbat the receivers were not liable. In the mental purpose, one of the purposes for which principal case, however, the court said: “In governments are instituted and maintained respect of liability, such as is set up. here, among men, such as the maintenance of order, the receiver stands in the place of the corpora the prevention and punisbment of crime, the care tion. In other words, the receivership is pro of highways, the relief of the destitute, the eduhac vice the corporation itself under the man cation of youth, the erection of buildings for the agement of one man, instead of that of a board of use of schools and of the officers of the governdirectors. To hold, therefore, that the statute ment; while a private object is one which is applies to corporations of a certain kind under ordinarily sought and attained by individuals or one management, and not to corporations of the private associations of individuals, such as the same kind under another management, would be cultivation of the soil, the manufacture of useful to create the inequality before the law."
and attractive articles, the purchase and sale of TAXATION MUST BE FOR A PUBLIC PURPOSE.
merchandise, and the thousand and one purposes The power of a legislature to levy or to author
which enlist individual enterprise and energy in ize the levy of a tax and to create or authorize the
a complex and advancing civilization. There creation of a public debt to be paid by taxation
seems to be no doubt in which category the prois limited to its exercise for a public purpose.
motion of the construction and maintenance of Sharpless V. Mayor, 21 Pa. 147; Cole v. City sugar factories falls." of La Grange, 113 U.S.1, 5 Sup. Ct. Rep. 416. The decision of the question whether a tax or a THE APPLICATION OF THE “ALIEN public debt is for a public or private purpose is CONTRACT LABOR LAWS” OF not a legislative, but a judicial function. Thus,
THE UNITED STATES. in the recent case of Dodge v. Township, 107 Fed. Rep. 827, it was held that the promotion of the
The "alien contract labor law” of the construction and operation of mills and factories United States provides that it shall be unlawto manufacture sorghum cane into sugar or syrup ful to “assist or encourage the importation or is a private and not a public purpose, and town
migration of any alien or aliens, any foreigner ship bonds issued for this purpose, and the Act
or foreigners, into the United States, under of March 1, 1889, authorizing their issue, are beyond the powers of the legislature and the town
contract or agreement, parol or special, ex. ship, and are void. The court said:
press or implied, made previous to the im
portation or migration of such alien or aliens, that extent the decision is, of course, a mere foreigner or foreigners, to perform labor or obiter dictum, as the court did not have beservice of any kind in the United States.”] fore it the case of an artisan or mechanic or Section 5 of the act designates the classes of other "skilled laborer,” as distinguished aliens whose employment is not forbidden, from the case of a professional man. In connamely: (1) private secretaries, servants or sequence of this difference of opinion bedomestics of foreigners temporarily residing tween the courts as to the true construction here; (2) skilled workmen to perform labor of the act, it was amended in 1891 by adding to in or upon any new industry not at present the second proviso, excepting certain classes established here, where such skilled labor of persons from the operation of the law, the cannot be otherwise obtained; and (3) pro words "nor to ministers of any religious defessional actors, artists, lecturers or singers, nomination, nor persons belonging to any and persons employed strictly as personal or recognized profession nor professors for col. domestic servants. The act, it will be ob- leges and seminaries."'4 In the case of United served, forbids in broad and general terms | States v. Laws, the supreme court held, the employment of aliens "to perform labor affirming the court below, that a foreign or service of any kind,” and specifies the chemist, employed to superintend the making classes of laborers or persons performing of sugar on a plantation in Louisiana, was a services to whom the prohibition shall not member of a "recognized profession,” within apply. In the case of United States v. the meaning of the amendment of 1891, and Church of the Holy Trinity, it was held in that his employment was therefore not a vio1888, by the circuit court of the United lation of the law. But the court went further States, that the act was violated by the em. and reiterated the dictum of Mr. Justice ployment of a foreign clergyman to officiate | Brewer in Holy Trinity Church v. United as rector of a church in New York. The court States, that the act prohibits only the emsaid that every kind of industry and every ployment of "cheap,unskilled foreign labor.” employment, manual or intellectual, was em- | The construction which the treasury departbraced by the words “to perform labor or ment and the public at large have placed service of any kind,” and prohibited the em. upon the law, as it now stands, is that the ployment of alien ministers, lawyers, sur- employment of aliens in any business, calling geons and all others who labor in any profes. | or occupation, or to perform any labor or sional calling, and that the mention of cer service, is prohibited by the act of 1885, tain classes of professionals as not being unless the employee falls within one of the within the prohibition of the act was equivel classes specially excepted by section 5 of alent to an express prohibition of the employ- | that act, or by the amendment of 1891, from ment of all other classes of professionals. the operation of the law. The obiter dictum
This decision was reversed by the Supreme of the supreme court that the prohibition of Court of the United States in 1892,upon the the act extends only to the employment of ground that the act was intended to prohibit !
“cheap, unskilled labor" has not been enonly the employment of foreign cheap, un forced by the treasury department, nor skilled labor.” In other words, the supreme taken seriously by the great body of court indirectly decides that the employment employers tbroughout the United States. of an alien skilled laborer is not prohibited Inasmuch as the case of the employment by the act. A person who receives as much
of an alien mechanic or other "skilled laas $2 per day for his labor or services cannot borer” not within the professional or quasibe termed a "cheap, unskilled laborer,” in professional classes, has never been presented the sense intended by the supreme court. to the supreme court, and inasmuch as a Therefore, the supreme court in effect decides doubt may be reasonably entertained that the that the employment of foreign artisans or supreme court would decide that the employmechanics at $2 or more per day is not pro ment of such a person is permissible under hibited by the alien contract labor law. To
4 Act March 3, 1891, seo. 5, 26 Stat. 1084. 1 Act Cong. February 26, 1885, 23 Stat. 382.
6 163 U. S. 258. * 36 Fed. Rep. 303.
The writer disclaims the use of this term in the 9 143 U. S. 457.
invidious sense in which it is sometimes employed.
the "cheap, unskilled labor” theory if the lished industries, to prohibit the introduction question were squarely presented there, the of alien'skilled laborers under contract to writer conceives that he may, with propriety, perform labor or services here. This prosubmit several reasons why the construction vision of the law is not referred to by the placed upon the act by the treasury depart supreme court in either of the two cases menment and the public should be maintained, at tioned, and no attempt is made to recol cile least so far as it applies to persons who re the statement that the act was intended to ceive wages of $2 per day and upwards, and exclude only “cheap, unskilled labor” with who cannot be described as "cheap, unskilled this indirect, but unmistakable, declaration laborers.”
that the purpose of the act is to exclude 1. The express prohibition of the employ skilled as well as "cheap, unskilled laborers." ment and importation of aliens “to per 3. There is another provision in the act form labor or service of any kind”. which shows that the prohibition is not to be in the United States. Lest this lan restricted to the employment and importaguage might be construed to extend tion of cheap, unskilled laborers. Section 4 to certain classes who could not come in imposes a severe penalty upon the master of competition with the great mass of American any vessel who shall permit any "alien lalaborers, congress, in the fifth section, ex borer, mechanic, or artisan” to land in the cepted professional actors, artists, lecturers, United States, knowing him to be under conand singers from the operation of the act, tract to perform labor or services here. A and afterwards, by the amendment of 1891,7 mechanic or artisan is not a "cheap, unextended the exception to “ministers of any
skilled laborer." The average wage paid religious denomination, persons belonging to
him in America is from $2 to $3 per day, a any recognized profession, and professors for sum three to four times as great as that paid colleges and seminaries.” Congress by these laborers of the low and degraded kind referprovisions unmistakably construes the act to
red to in the case of Holy Trinity Church v. extend to every class of laborers not embraced
United States.10 The opinion in that case in the exceptions. It would be difficult to find contains no reference to this provision of the any better evidence of the kind of laborers in act. tended by the act. Congress baving speci Other statutes also show that congress confied the classes of persons not within the strues the prohibition to extend to the emoperation of the statute, may the courts add 1 ployment and introduction of alien skilled another vague, general and indefinite class, laborers. By the act of August 5, 1892,11 namely, all persons coming here under con it was provided that exbibitors at the tract "to perform labor or service” who can World's Columbian Exposition at Chicago not be classed as “cheap, unskilled labor- | might contract with and bring in
might contract with and bring in "such ers."
mechanics, artisans, agents, or other em2. Section 5 of the act of 1885, provides 8 ployees as they may deem necessary for the that the act shall not be so construed purpose of installing or conducting their exas to prevent the employment of “skilled bibits,” and that any such alien remaining workmen in foreign countries to perform in the United States a certain length of time labor in the United States in or upon any after the close of the exposition should be new industry not at present established in subject to all the penalties of the alien con. the United States, provided that skilled labor tract labor law. A similar provision is confor that purpose cannot be otherwise ob tained in a number of acts relating to fairs tained.” This is as much as to say that no and expositions.12 Of course, there would foreign skilled workman can be brought to
have been no necessity for any of these acts the United States under contract, in the es if congress did not construe the act to ex. : tablishment of a new industry if skilled labor clude skilled as well as unskilled laborers. for that purpose can be obtained here. And 4. A further evidence of the construction it shows beyond possibility of cavil or doubt 9 Sec. 4, Act February 26, 1885, 23 Stat. 332. that the act was intended, as respects estab
10 143 U. S. 457.
11 27 Stat. 402. 7.46 Stat. 1084, sec. 5.
12 28 Stat. pp. 1, 967, 224, 60 9, 29 Stat. 474, 30 Stat. 8 23 Stat. 382.
placed by congress upon the act of. 1885 is ers. The result of the suit scarcely justifies found in the amendment of 1891.18 At that the citation. time the construction given the act by the The next case was that of United States v. treasury department was well known to con Thompson. 16 Here the penalty of $1,000 gress. It had been brought to their atten was recovered from the defendant for emtion by the proceedings against Trinity ploying and bringing in a French woman unchurch in 1888 to recover the penalty of der contract as a milliner. Such a person, if $1,000 for a violation of the law in bringing very expert in her business, might be conan alien to this country under contract to sidered somtbing more than a skilled laborer; officiate as a clergyman. The application the defense was that sbe was a professional of the law was, at that time, the subject of artist,” within the exception of the statute. much discussion and of many interviews be- The court held tbat she was not such in the tween committees of congress and the offi sense of the statute; but it was not suggested cials charged with the enforcement of the by any one that the act did not apply to act. Yet the amendment consisted merely the class of highly skilled operatives to of a provision which excluded professional which this person belonged. persons from the operation of the statute. In the case of United States v. McCollum! It seems reasonable to assume that if con it was held that the manufacture of “French gress intended the act to apply only to the em silk stockings' was a "new industry' in the ployment and introduction of "cheap un. United States, which would justify the emskilled labor” having knowledge of a differ. ployment of alien skilled laborers if such ent construction adopted by the treasury laborers could not be found in the United department, they would have set the matter States, but judgment for the penalty $1,000 at rest by expressing such intention in the was rendered against the defendant upon amendment. Their failure to restrict the the ground that he failed to show a proper application of the act to “cheap unskilled effort to find skilled weavers in this country. labor” at this opportune time must, under In the case of United States v. Bromley, 18 such circumstances, be deemed a legislative in which the alleged violation of the law conadoption or affirmation of the departmental sisted in employing and bringing foreign construction of the act.
lace curtain makers to this country, judg5. The cases which have been decided by ment was rendered for the defendant on the the courts, with the exception of the two ground that the manufacture of fine lace cases already referred to and the case of curtains was a "new industry” in the United United States v. Gay,' recognize no distinc States. tion between skilled and unskilled labor in In all these cases it must be conceded that the application of the contract labor laws. the employees were, to say the least, skilled The first case wbich arose was that of United laborers of a high class, yet in none of them States v. Craig, which was a suit to recover was it intimated by the court or suggested the penalty for violating the law in employ by the defendants themselves, tbst the act ing and bringing to this country an'alien applied only to the employment and introduc. ship carpenter. There was a demurrer to tion of cheap unskilled laborers. the declaration on the ground that the act In the case of the United States v. Gay,19 was unconstitutional, but judgment was decided by the Circuit Court of Appeals in rendered for the plaintiff. It was not even 1899, the question was squarely presented suggested by the defendant that the employ whether a certain person, who was not a ment of such a highly skilled mecbanic was common laborer, and who was not within not forbidden by the act. The remarks of
any of the exceptions of the acts of 1885 and Mr. Justice Brown in this case were quoted 1891, might lawfully be brought to the in Holy Trinity Church v. United States as | United States onder a contract
United States under a contract of employ. supporting the view that the act applies only ment. The employee in this case was a * to the employment of cheap unskilled labor.
16 41 Fed. Rep. 28. 18 26 Stat. 1028.
17 44 Fed. Rep. 746. 14 96 Fed. Rep. 226.
18 68 Fed. Rep. 564. 15 28 Fed. Rep. 795.
1996 Fed. Rep. 226.